New York Times Co. v. United States, 403 U.S.

713 (1971), was a United States Supreme

Court per curiam decision. The ruling made it possible for the New York Times and
Washington Post newspapers to publish the then-classified Pentagon Papers without risk
of government censure.

The U.S. President Richard Nixon had claimed executive authority to force the Times to
suspend publication of classified information in its possession. The question before the
court was whether the constitutional freedom of the press under the First Amendment was
subordinate to a claimed Executive need to maintain the secrecy of information. The
Supreme Court ruled that First Amendment did protect the New York Times' right to print
said materials.

Contents
[hide]

• 1 Setting
• 2 Decision
• 3 Implications
• 4 See also
• 5 Research resources

• 6 External links

[edit] Setting
By 1971, the US had been overtly at war with North Vietnam for six years. At this point,
45,000 American soldiers had died and the administration was facing widespread dissent
from large portions of the American public. In 1967 Secretary of Defense Robert S.
McNamara commissioned a “massive top-secret history of the United States role in
Indochina”. The resulting 2.5 million word classified work was obtained by the New
York Times within three years, which immediately began publishing articles outlining the
findings.

The first article appeared in the Times' Sunday edition, June 13th, 1971. By the following
Tuesday, the Times received an order to cease further publication from a District Court
judge, at the request of the Administration. The Government claimed it would cause
"irreparable injury to the defense interests of the United States" and wanted to "enjoin the
New York Times and the Washington Post from publishing the contents of a classified
study entitled History of U.S. Decision-Making Process on the Vietnam Policy.” Seen
from a constitutional perspective, the Government was expressing its intent to enforce
prior restraint upon a newspaper with regards to publishing the findings of a study that
the Government itself had made.
On the 19th, the District Court rejected the administration’s request for an injunction.
After several battles within numerous courts with no clear victory for any party, both the
Times and the Government appealed to the Supreme Court.

Along with the issue of how the Times obtained the documents (which was being
investigated by a federal grand jury elsewhere) the real issue for the Court was whether
there was a sufficient justification for prior restraint, which would be a suspension of the
newspapers’ First Amendment rights to freedom of the press. The First Amendment states
that no federal law can be made abridging the freedom of the press, but a few landmark
cases in the 20th century had established precedents creating exceptions to that rule.

The most recent incarnation of the exception was the grave and probable danger rule,
established in Dennis v. United States, 341 U.S. 494 (1951). During this case, the
wording was changed to the grave and irreparable danger standard. The idea behind the
numerous versions of the rule is that if a certain message will likely cause a “grave and
irreparable” danger to the American public when expressed, then the message’s prior
restraint could be considered an acceptable infringement of civil liberties. The Supreme
Court was therefore charged with determining if the Government had sufficiently met the
“burden of showing justification for the imposition of such a restraint” .

The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and
the Justice Department on June 25th and 26th 1971. On June 30th, with six Justices
concurring and three dissenting, the Supreme Court upheld the right of the two
newspapers to publish the material.

In its decision, the court first established the legal question with the use of precedents. It
first stated that “Any system of prior restraints of expression comes to this Court bearing
a heavy presumption against its constitutional validity”. The purpose of this statement
was to make the presence of the inherent conflict between the Government’s efforts and
the First Amendment clear. The decision then stated that the Government “thus carries a
heavy burden of showing justification for the imposition of such a restraint”. This
reinforced the idea that it was the Nixon Administration's responsibility to show sufficient
evidence that the newspapers’ actions would cause a “grave and irreparable” danger.

[edit] Decision
The decision finally stated that the Supreme Court agreed with the two lower courts
which had originally decided that the Government had not met that burden, so the prior
restraint was not justified. This final decision was not signed by any particular justice.

The Per Curiam opinion itself in this case was very brief because all the Court wanted to
state was that it had concurred with the decisions of the two lower courts to reject the
Government’s request for an injunction. The Justices’ opinions included different degrees
of support for the clear superiority of the First Amendment and no Justice fully
supported the Government’s case. Because of these factors, no clear and exclusive law
appears to have come out of this case. Nevertheless, the significance of the case and the
wording of the Justices’ opinions have added important statements to the history of
precedents for exceptions to the First Amendment, which have been cited in numerous
Supreme Court cases since .

Justice Hugo Black wrote an opinion that elaborated on his absolutist view of the First
Amendment. He was against any interference with freedom of expression and largely
found the content of the documents to be immaterial. Justice William O. Douglas (1898-
1980) largely concurred with Black, citing the need for a free press as a check on
government.

Justice William J. Brennan, Jr. explained how the publication of the documents did not
qualify as one of the three exceptions to the freedom of expression established in Near v.
Minnesota (1931).

Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of
the Executive to ensure national security through the protection of its information.

Justice Thurgood Marshall established the notion that the term “national security” was
too broad when legitimizing prior restraint, and also argued that it is not the Court’s job
to create laws where the Congress cannot.

Justice Warren E. Burger, dissenting, argued that “the imperative of a free and unfettered
press comes into collision with another imperative, the effective functioning of a complex
modern government," that there should be a detailed study on the effects of these actions.
He argued that in the haste of the proceedings, and given the size of the documents, the
Court was unable to gather enough information to make a decision. He also argued that
the Times should have discussed the possible societal repercussions with the Government
prior to publication of the material. The Chief Justice did not argue that the Government
had met the aforementioned standard, but rather that the decision should not have been
made so hastily.

Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing
the faults in the proceedings, and the lack of attention towards national security and the
rights of the Executive.

[edit] Implications
The broader implications of this case at the time were that the people of the United States
were exposed to a history of inner operations of the Executive with regards to the war,
putting the Government under a level of public scrutiny it had not known before. The
Times’ victory strengthened the notion that it was not only the right of but also a central
purpose of the free press to scrutinize government. This notion has been kept strong since
and is still evident today in public criticism of the Bush Administration. The status of the
debate in recent years has focused on criminal technicalities relating to First Amendment
rights, as well as prior restraints against information that has the potential to harm people
economically. It is still contended that the freedom of the press cannot be abridged
through vague speculations of harm.

This article reviews the history and background of New York Times Co. v. United
States. It examines the legal arguments, strategy, precedent, procedural posture and
dialogue that transpired during the case.[1]

Contents
[hide]

• 1 Background
o 1.1 Section 793 of the Espionage Act
• 2 Procedural history
o 2.1 Restraining order sought
o 2.2 The trial
 2.2.1 Near v. Minnesota
 2.2.2 The federal trial court's ruling
o 2.3 U.S. Court of Appeals for the Second Circuit
o 2.4 Writ of certiorari filed
• 3 The Supreme Court case
o 3.1 Background
o 3.2 Arguments
• 4 Criticism of the case
• 5 Aftermath and legacy
• 6 Quotes about the case
• 7 Trivia
• 8 Resources
• 9 See also

• 10 References

[edit] Background
[edit] Section 793 of the Espionage Act

Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell, a
Watergate conspirator, as cause for the United States to sue to bar further publication of
stories based upon the Pentagon Papers. The statute was spread over three pages of the
United States Code Annotated and the only part that appeared to apply to the Times was
793(e), which made it criminal for:

Whoever having unauthorized possession of, access to, or control over any document,
writing, code book, signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the officer or employee of the United
States entitled to receive it.[2]

Based on this language, Bickel and Abrams felt there were three preliminary arguments
to raise. First, the wording of the statute was very broad. Was each article about foreign
policy one "relating to the national defense"? What was the significance of "reason to
believe" that the Pentagon Papers "could be used to the injury of the United States or the
advantage of any foreign nation"? If the motivation was to educate the public, was that a
defense that served to help, not hinder, the country? Would the public be "a person not
entitled to receive" the information? Of equal import was what the statute did not say: No
references to "publication" (as Attorney General Mitchell's cease-and-desist order
referenced), no reference to classified information, and no support for Mitchell's reliance
on the top secret classification to justify restraint on publication. Additionally, there was
no statutory language providing authority for prior restraint on publication at all.

Second, was the relevance of Mitchell's reliance on a criminal statute in a civil

proceeding seeking prior restraint. There was Supreme Court precedent that lent support
to the idea that bans on the publication of information by the press to be unconstitutional.
In 1907 Oliver Wendell Holmes wrote the "main purpose" of the First Amendment" was
"to prevent all such previous restraints upon publications as had been practiced by other
governments." In 1931 the Court wrote that only the narrowest circumstances--such as
publication of the dates of departure of ships during wartime--were permissible. In 1969
John Marshall Harlan II wrote the Supreme Court "rejected all manner of prior restraint
on publication." This second line of reasoning made it seem the statute should only be
dealt with in passing, making the case a First Amendment one and the relief the
government wanted--a bar on publication--unavailable.

The third possible approach was a very broad view of the First Amendment, one not
focused on the impact of a government victory on the life of a democratic society if prior
restraint were granted; but that the publication of just these sorts of materials--
governmental misjudgments and misconducts of high import--was exactly why the First
Amendment existed.

[edit] Procedural history

[edit] Restraining order sought

The government filed a restraining order that barred the Times from publishing any
further articles based upon the Pentagon Papers. In addition to The New York Times
Company, the Justice Department named the following defendants : Arthur Ochs
Sulzberger, president and publisher; Harding Bancroft and Ivan Veit, executive vice
presidents; and Francis Cox, James Goodale, Sydney Gruson, Walter Mattson, John
McCabe, John Mortimer and James Reston, vice presidents. Also, John Oates, editorial
page editor; A. M. Rosenthal, managing editor; Daniel Schwarz, Sunday editor; Clifton
Daniel and Tom Wicker, associate editors; Gerald Gold and Allan Siegal, assistant
foreign editors; Neil Sheehan, Hedrick Smith, E. W. Kenworthy and Fox Butterfield,
reporters; and Samuel Abt, a foreign desk copy editor.

Federal judge Murray Gurfein heard arguments. Michael Hess, chief of the Civil Division
of the United States Attorney's Office, argued "serious injuries are being inflicted on our
foreign relations, to the benefit of other nations opposed to our foreign relations, to the
benefit of other nations opposed to our form of government."[3] Hess relied on Secretary
of State William P. Rogers's statement reported earlier that day that a number of nations
were concerned about the Papers publication and an affidavit from general counsel of the
Navy that alleged irreparable injury if publication did not cease. Hess asked for a
temporary restraining order.

Bickel argued that the separation of powers barred the court from issuing the restraining
order, since there was no statute authorizing such relief. He further argued that there was
no exception to the general unavailability of prior restraint that applied in this case.
Gurfein called all counsel to his chambers and asked Bickel and Abrams to have the
Times cease publication of the Papers until he could review them. Bickel responded that
Gurfein would be the first judge in American history to enter a prior restraint enjoining
publication of news if he granted the government's request. The Times refused to cease
publication. Gurfein granted the request and set a hearing for June 18.

The New York Times agreed to abide by the restraining order.

[edit] The trial

That Friday, June 18, Bill Hegarty, on behalf of the Times, cross-examined the
government's witnesses. He did so without preparation: he neither knew who they were
or what they would say. By the end of his cross-examination it was apparent there was no
proof that publication would cause military harm to the war cause. The session of the
court was in camera. The critical witness, according to Abrams, was Vice Admiral
Francis Blouin, deputy chief of naval operations for plans and policy. In his examination,
it became clear that his objections were so far-reaching that things routinely published
would be deemed illegal. He referred to material that "would be just better not to make
public." He conceded that he "maybe I am oversensitive," and when asked about
President Nixon's own public announcement of plans for withdrawal from Vietnam,
concluded ruefully, "We just about live by the open book." When Judge Gurfein
suggested that many of his objections to what he saw published was in fact already public
knowledge in newspaper accounts, books, memoirs and the like, the admiral's only reply
was, "I deplore much of what I read."

Judge Gurfein throughout the hearing urged the government's witnesses to give specific
examples where military security would be compromised by further publication, and each
time they failed to cite the danger to publish. Dennis James Doolin, deputy secretary of
defense for international security affairs, was called by the government to testify as to the
propriety of classifying the Papers as top secret. He was unable to give any specifics that
gave sound cause for doing so, and as he went on, "Judge Gurfein gave every indication
that he was losing respect for the seriousness of the government case."[4]

In their brief, Abrams and Bickel argued that although Doolin was the witness with the
most familiarity with the Papers, he gave no testimony that met the Near v. Minnesota
test for establishing justification for prior restraint.

[edit] Near v. Minnesota

All lawyers in the trial agreed that the central issue in the case rested upon the Supreme
Court's leading decision on prior restraint, Near v. Minnesota. Near struck down a
Minnesota statute that permitted injunctions against news stories that were "malicious,
scandalous and defamatory." Chief Justice Charles Evans Hughes's opinion made clear
that the First Amendment's "chief purpose of the guaranty to prevent previous restraints
upon publication"; however, he offered examples of what would not be allowed. He
wrote: "No one would question but that a government might prevent actual obstruction to
its recruiting service or the publication of the sailing dates of transports or the number
and location of troops"[5] "All sides quickly compressed the Near language into a single
question critical to our case," wrote Abrams: "Was there an example of material in the
Pentagon Papers akin to revelation of details about a 'transport'?"[6] Judge Gurfein
welcomed the cohesion of counsel in settling upon the central legal issue in the case.

[edit] The federal trial court's ruling

On Saturday, June 19, Judge Gurfein issued his opinion. "It was a stunning, total
vindication of the Times," wrote Abrams.[7] The government did not even produce enough
facts to show a clash between "vital security interests of the Nation and the compelling
constitutional doctrine against prior restraint." The "in camera proceedings did not
convince this Court that the publication of these historical documents would seriously
breach the National security." Further, the Court noted:

These are troubled times. There is no greater safety valve for the discontent and cynicism
about the affairs of the Government than freedom of expression in any form. This has
been the genius of our institutions through our history. It has been the credo of all our
Presidents. It is one of the marked traits of our national life that distinguish us from other
nations under different forms of governments.[8]

[edit] U.S. Court of Appeals for the Second Circuit

The Times met a hostile Court of Appeals for the Second Circuit on appeal. "Bickel was
pounded mercilessly by Chief Judge Henry Friendly from the moment he rose to
respond," wrote Abrams.[9] Throughout the case Abrams reported he was asked by peers
and strangers how he felt representing traitors, and Friendly's questioning reminded him
of this mentality.

Judge Friendly: You know that someone gave them to the Times when he had no
authority to do it, though?
Bickel: That is the allegation, Your Honor. But how he got them—
Friendly: Is there even the slightest doubt about that?
Judge Kaufman: You have not denied that, have you?
Bickel: We have not denied that the Times did not get the documents from a government
source authorized—
Friendly: Why not just say the answer is the Times got them without authorization? Then
we need not waste time quibbling about that.
Bickel: That, it seems to me, begs a certain question. I am not arguing that. I am only
very briefly trying to get the world "stolen" out of this discourse.

The next day the court ruled 5-3 against the Times and remanded to Judge Gurfein for
further in camera hearings, requiring him to decide by July 3 whether publication of any
of the articles "pose such grave and immediate danger to the security of the United states
as to warrant their being enjoined." Since Near v. Minnesota made it clear that prior
restraints were to be all but banned, the Times was faced with a ban on publication for at
least 19 days, more if the Supreme Court was to consider the issue. The Ninth Circuit's
order was interlocutory--not final--and the Supreme Court rarely hears such cases, so a
direct appeal for a writ of certiorari was not an appealing prospect.

[edit] Writ of certiorari filed

On June 24 Abrams filed the writ with the Supreme Court. When he arrived the clerk of
the Supreme Court was waiting on the top step outside, along with a throng of
photographers. "The justices were wondering when you would arrive," said the clerk.
Although Abrams had concern they would not hear the writ because of the interlocutory
nature of the Ninth Circuit's ruling, he realized that the case was not ordinary litigation,
but "an extravaganza, a mixture of law, politics and journalism that had always been
bound for the Supreme Court."[10]

[edit] The Supreme Court case

Main article: New York Times Co. v. United States

[edit] Background
New York Times Co. v. United States
 Supreme Court of the United States
Argued June 26, 1971
Decided June 30, 1971
Full case name: New York Times Co. v. United States,

Citations: 403 U.S. 713

Subsequent history: 444 F.2d 544, reversed and remanded.

Holding
In order to exercise prior restraint, the Government must
show sufficient evidence that the publication would cause a
“grave and irreparable” danger.
Court membership
Chief Justice: Warren E. Burger
Associate Justices: Hugo Black, William O. Douglas, John
Marshall Harlan II, William J. Brennan, Potter Stewart,
Byron White, Thurgood Marshall, Harry Blackmun
Case opinions
Per curiam.
Concurrence by: Black
Joined by: Douglas
Concurrence by: Douglas
Joined by: Black
Concurrence by: Brennan
Concurrence by: Stewart
Joined by: White
Concurrence by: White
Joined by: Stewart
Concurrence by: Marshall
Dissent by: Burger
Dissent by: Harlan
Joined by: Burger, Blackmun
Dissent by: Blackmun
Laws applied
U.S. Const. amend. I

Floyd Abrams and Alexander Bickel represented The New York Times in New York Times
Co. v. United States, a case concerning the Times' publication of classified documents
during the Cold War. The Pentagon Papers is the colloquial term for United States-
Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense, a 47
volume history of the United States' political and military involvement in the Vietnam
War. In his book, Abrams states, "The most striking thing about the order granting our
petition...was contained in the final paragraph." Abrams not only filed a petition, but also
filed a motion for the Supreme Court to vacate the ruling by the court of appeals; in other
words, they asked for total victory without argument. Justices Black, Douglas, Brennan
and Marshall were prepared to hand them this victory. But the other five justices were
not. Their brief summarized the facts, the rulings of the lower courts, and began with co-
counsel Alexander Bickel's "legal poetry" that the Supreme Court itself adopted:

Prior restraints fall on speech with a brutality and a finality all their own. Even if they are
ultimately lifted, they cause irremediable loss, a loss in the immediacy, the impact of
speech. They differ from the imposition of criminal liability in significant procedural
respects as well, which in turn have their substantive consequences. The violator of a
prior restraint may be assured of being held in contempt. The violator of a statute
punishing speech criminally knows that he will go before a jury, and may be willing to
take his chance, counting on a possible acquittal. A prior restrain therefore stops more
speech, more effectively. A criminal statute chills. The prior restraint freezes.

The solicitor general's office violated accepted court practice and did not advise Abrams
of their motion to conduct part of the argument in secret because national security matters
would be discussed. This is called a limited in camera argument. By a vote of 6-3, the
Court denied the motion. Justices Potter Stewart and Byron White joined the four above-
mentioned justices.

[edit] Arguments

Abrams felt Griswold faltered immediately when he started with irrelevant and
unexceptional arguments. Justice Stewart cut to the meat of the case when he asked
Griswold directly about the importance of the classified status of the documents the
Times printed:

Stewart: As I understand it, Mr. Solicitor General, and you tell me, please, if I understand
it, your case does not really depend upon the classification of this material, whether it is
classified or how it is classified. In other words, if the New York Times and the
Washington Post had this material as a result of the indiscretion or irresponsibility of an
Under Secretary of Defense who took it upon himself to declassify all of this material and
give it to the paper, you would still be here?"
Griswold: I would still be here. It will be one string off my bow.
Stewart: I did not understand it was a real string on your bow. That is why I am asking
you the question.
Griswold: Maybe it is not, but there are those who think it is, and I must be careful not to
concede away in this court grounds which some responsible officers of the Government
think are important.

This was, in Abrams's opinion, the weakest argument he could have made.